Lecture Notes.docx

Lecture 1:
Death Penalty in the USA and Canada before 1867
The Justice System in USA and Canada
o In late 1700s the 13 colonies were made of groups of different religions.
Georgia for example would punish people by banishing them.
 Virginia people who committed a crime would be punished with owing
tobacco
 Each colonies labour force was made up of slave labour. Highly
dependant on slave labour was Maryland, Virginia, North and South
Carolina, Georgia, and Florida.
 12 million import slaves were brought into the southern colonies.
 Slave population began self sustaining. Which did not happen in
Caribbean, reproduction did not made up for death. Mainly because
labour and abuse was much more difficult
American Population, c. 1760
o Virginia/Maryland:312,000(white 189,000(black)
o N& S Carolina, Georgia: 119,00(white); 94,000 (black)
o South Carolina: 36,000 (white); 57,000 (black)
o Slavery also occurred in Canada – Nova Scotia, Québec, Ontario. – But slavery
didn’t make a lot of sense because we did not have the climate for large
plantations. They would instead work as domestics.
o Each 13 colonies shared a common language, until Canada. And they also had a
similar geography along the East coast. Which lead to them coming together in
1775 to rebel against British rule. These states wanted to maintain control over
everything including individual control over judicial court.
 In some cases the federal government would have to step in because the
state would not be following the basic rights of the constitution.
Political System of the United States
o A) House of Representatives – Lower House - 445 members (biggest states
have most representative)
o B) Senate – Upper House – 2 Senators for each state – 6 year term (Together
called congress)
o C) Executive branch – the President and his Cabinet – Not members of house
or senate (unlike Canada – doesn’t not have a regional section) (Citizens vote
for president not member of regional group) o D) Veto – President can override any legislation run by congress. Congress cant
try to pass the veto, but they need 2/3 majority.
o E) States – 50 states, hold different criminal codes.
o F) Criminal Codes – Each state has own criminal code.
Criminal Courts Process
o In US most criminal offenses are called offenses.
o In US misdemeanour for less serious crimes. In Canada called summary …?
o In US 3 different levels of police
 By Police – larger city police
 By County Sheriff – Small rural areas – (all states but two – Sheriffs are
elected, if you want to remove a sheriff you need to vote him out)
 By State Police –
o Federal Government has own policing – FBI – which only carry out federal
laws, or if it involves with more than one state.
o Appearance - need to make an appearance in court where you are brought
before a judge (48hrs) to be charged with a crime
o Grand Jury – Decide if there is enough evidence for a trial. (In Canada called
preliminary hearing). The reason for grand jury is to keep a limit on prosecutors
and make sure they have a good enough case. This is a way for defense to see
the evidence (which usually have people confess to guilty)
o Arraignment – where it is read out if person is guilty or not guilty.
Judiciary
o State Courts
o Of Limited Jurisdiction – 90% of all courts in US – deal with minor crimes,
only impose crimes of $5000 or jail of one year – City Courts
o Of General Jurisdiction – More serious cases – Murder. Also able to hear cases
from lower level courts
o Appeals & Courts of last resort – highest jurisdiction. All states have their own.
Usually when constitutional laws have been violated. Usually no Juries, but
judges. State Judges are usually elected by popular vote.
o Judicial Review –
Federal Judiciary
o Federal Jurisdictions –
 District Court - Each states have at least one district court – usually have
more than one judge. – Jury decides on verdict (or of bench trial – only
judge will decide). Fewer then 2% are tried in jury decision. Would be a federal grand jury. And a US attorney would be used. They will decide
by a vote if it needs to proceed to a trial
 Court of Appeals – Also called circuit courts. Current 13 circuit courts,
which include more then one state. They near cases that are heard in
lower level courts. These judges are not elected but are selected by
President and senate confirms the choice.
 Supreme Court of the United States – Also selected and confirmed by
president and senate. Usually not murder crimes, but people suing the
federal government or someone injured in another state. 9 judges who are
appointed for life (Canada must retire at 75).
o Among people who where supreme court judges at the federal US level were
108 men, and 4 women, up until 1967 they have been all white men. 1984 was
when the first women came into power.
o Each judge has a number of clerks (usually 4 – law school judge) – there
appeals are read by clerks who write summaries, which the judge will then
decide to bring it to the other judges. (only need a vote of 4). Hear about 90
cases a year. If there is a tie then they will look for lower courts opinion.
 More than 13 colonies in British North America
 Economically slavery did not make sense in the Northern part of Canada
 USA emerged out of struggles within colonies of different colonial power
 Share common language, similar geography and they didn’t have opposition to arbitrary
British rule as a result when 13 colonies came together 1875.1880s is criticized political
authority, did not trust powerful governments, they ended up gaining control of tradition and
criminal law
 Individual state important so fought civil war to win over control
 Each state had own criminal justice system, with its own rule
 Political System of the United States
a. House of representatives
b. Senate
c. Executive
d. Veto
e. States
f. Criminal Codes
Federal government worked around mutual benefit, two legislative lobby; house of representatives has
435 members elected over 2 years, there is also a senate two are elected and in 50 states 100 are elected; 6
years, lower house of representatives elected basis on population
has 4a has a senate not elected here but appointed and provide regional representations 108 senators; PEI
Political representations constructed through British System
President has veto to override any legislation passed by congress, need to come up with 2/3 majority
50 different states and has own criminal code and repeated 50 times and slight differences  Ex. Texas 1973 found wife with a lover cheating and husband shot him, it would be
considered punishment rather than murder
 Canada- most serious crimes are called felonies, called indictable offences
 A. arrest
 By police
 By county sheriff-rural area appointed by mayor or council and can be removed by mayor
 By state police
 Appearance
 Grand jury
 arraignment
FBI can get involved in murder cases
States produced in court within 48 hours; Canada is 24 hours and tried for bail
Prosecutor presents a case, has enough evidence to show that the case can be presented for a lengthy
period of time
Judiciary
 state courts
 trial courts (limited jurisdiction) 90% of courts in US
 general jurisdiction for serious crimes, murder cases are tried
 appeals and courts of last resort
 judicial review
 state judges are appointed are elected
federal judiciary
federal jurisdictions:
district court for each state ex. Florida has 4 each due to population increase
courts of appeal
Supreme court of the United States
Jury decides on verdict; fewer than 2% end up in jury trial
Evidence is presented by US attorney or in Canada crown prosecutor
State level: grand jury given evidence decides simple majority votes and decides if there is a trial or
not
9 circuit courts 1891; since then has grown to 13
168 appeal court judges; like state appeals originated in lower district courts
Rejecting judicial nominees rare
Supreme court
Have jurisdiction over federal criminal law 9 judges-appointed to the bench for life by supreme president- unlike in Canada most judges retire at
the age of 75 there is no retirement age
Michael Vincent (1828)
 Waterloo Township farmer
 Tried in Hamilton for killing his wife
 Prosecuted by attorney general John Beverly Robinson
 Sentenced to death, hanged 2 days later
John albert (1882)
 City of Toronto police constable
 Patrolling High Park/Grenadier Pond on 17 july 1882
 Shot 17 year old trespasser Andrew Young
 Was shooting intentional?
Convicted of murder and sentenced to be detained
 Albert sentenced to death
 Commuted to life in person
1882-Michael O’Rourke
 Casual farmhand for family in Milton, Ont.
 Killed Edward Mahar (85) & His daughter Brigit (35)
 Confessed, and Hanged
 There was no direct evidence
 Modern trial: “ Voir dire”(to speak the truth) same arguments for or against or a
confession would have been made but jury would have been asked to leave the room
first “trial within a trial”
 In all cases trial was over in one day
 Modern day trial would last 3-4 week Lecture 2: Capital Punishment
Roll/Function of Punishment
 Incapacitation
Keep the society separate from the criminal, symbolic discourse element of
denunciation
 Denunciation
Denounce unacceptable behaviour
 specific Deterrence
executions were public message sent to society
 General Deterrence
 Reformation & Habitation
Death penalty there is no second chances
These are functional approaches of reform
Doug Hay ideology, legal historian written about the cri